Could the "common use" clause haunt us?

I've been wondering if the "common use" clause in Heller vs. DC could be used to keep new technology from the market. After all, every new thing takes time to become "commonly used". If common use was the standard years ago, we might not have gotten lever actions, because they weren't commonly used by civilians for a while. Same with bolt actions, semi-autos, rifling, percussion caps, metallic cartridges, and a whole host of technological advancement.

Could that clause be used to justify restricting future developments in guns and gun technology?

The Thompson was a very expensive machine gun with very close manufacturing tolerances, but that doesn't mean that all machine guns were. Take the Sten for instance, it was basically a short length of muffler tubing and a bolt. Very easy and inexpensive to make (I think it was on the order of only a few dollars each at the time).

200+ years ago, civilians had rifles, while much of the military was still using smoothbores. At the time in question, civvies had the superior weaponry in a lot of ways. Sure, it look a little longer to load 'em, but it was still an improvement on the ol' muskets.

So, in spirit, the free market is still the place for honest improvements on the technology, and shouldn't be oppressed by a tiny minority with fancy hats.

US v Miller, not Heller, was in the ruling . That case the ruling was that sawed off shotguns were NOT usefull Militia weapons and could be banned (taxed). If it is a usefull Militia weapon it cannot be banned (per Miller).

Could that clause be used to justify restricting future developments in guns and gun technology?

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I think you would have to add in the "valid Militia weapons", fundamental right and strict scrutiny tests to that. Not just the "common use" test alone. All rights have some outer edges of what is reasonably protected versus what can be restricted, but fundamental rights have the highest level of protection. Any future court must look at individual cases from that perspective, not just what guns/features are "allowed", but what restrictions are "allowed".

Back to the OP's original question, this is something I've often pondered - and I believe Justice Breyer touched upon it in his dissent in Heller, if only tangentially. I don't believe the majority opinion in the decision will be "fleshed out" by any subsequent court or ruling to afford protected status to any new weapon technology as it arises (i.e., directed energy weapons, Star Trek phasers or the like) because of the "common use" language in the opinion. In an attempt to highlight what he saw as a flaw in Scalia's reasoning, Breyer speculated that if Congress were to ban private possession of such weapons shortly after their invention, there would simply be no opportunity for them to enter common usage, and therefore the Second Amendment would guarantee no right to their possession.

Hell, if the gun grabbers were smart, they would do just that - simply avoid the political battles over guns altogether, wait a few decades until the technology for advanced weaponry became feasible, and then push for a ban on that stuff. Few if any would own them, there'd be practically no opposition, and before you know it, *poof* - our AR's become the modern equivalent of the flintlock musket. Once that time comes, it'll be somewhat pointless to argue how dangerous "assault weapons" and "high cap mags" are once the hardware exists that'll disintegrate you at 1000 yards with a laser beam.

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